Oracle has a copyright to the computer code, but not a patent. That means that the public, not oracle, has the right to these functions. Oracle cannot leverage its copyright to create pattonlike rights. Specifically, under the merger document there is no copyright protection for computer code that is the only way to perform those functions. Java Software Developers have the right to use certain commands to create applications for googles android smartphone platform. The commands require google to reuse an exact set of code from java se. Because there are no substitutes oracle is claiming the exclusive right to not merely what the declaration is saying, but what the declarations do. That is not a copyright, it is a patent right. Respect to fair use, the longstanding practice of reusing code is write the developers to millions of creative applications that are used by more than one billion people. Those policy questions are academic, the issue is not whether this court would find fair use. The standard asks the much narrower question of whether the jury could reasonably find fair use. Oracle regrets its demand that the jury way all the evidence in a general verdict that contains no subsidiary findings. No Previous Court ever held that only a Court Must Decide fair use. No prior Appellate Court overturned a fair use verdict. This uniquely contested case should not be the first. Today you will hear three lawyers present legal arguments for an hour. In 2016, the jury heard the starkly conflicting testimony of almost 30 witnesses and reviewed exhibits over 2. 5 weeks. As thee illustrates court reiterated in georgia verse public resource, that the fair use quote is sensitive and cannot be resolved without a trial. Mr. Goldstein, lets say somebody copies the headings in your brief and they copy the organization in your brief, which sections you put first and how you organize them, would your argument say that is perfectly fine so long as they write their own text . Computertein no, a program is different and in addition you would not have the issue of the merger doctrine. The issue here is that it is not possible to provide the functionality that we have the right to with android without recreating that structure. Justice roberts i understand your merger argument is different, but i dont think that was the question i asked. Mr. Goldstein in terms of whether you could recreate the bookngs from a brief or a and recreate the structure, not unless it was necessary to do so. That is what is true here. You areroberts if talking about necessary to do so and again you are forcing me back to the merger doctrine and that is fine. Reason there is only one way to do it is because some expression product was very successful. There were a lot of ways to do it when they did and the fact that everybody, the programmers liked it and that is what everybody used it seems a bit much to penalize them for that. Mr. Goldstein we dont intend to penalize them. Our point is that in the language of section 102 b they may have come up with a model method of operation, they may have created one. They dont get the rights to it. That is a patent like right. As your point illustrates in baker versus selden you could have said mr. Selden came up with an innovative form of bookkeeping and other people could have used a different one. That was not enough to give him a copyright. I dont think its a patent right. It is there particular expression and you are saying the only way for you to say what you want to say in the new material that you provide is to copy there is, that is not a patent, that is copyright. Mr. Goldstein our point is this, we have the right to provide a certain functionality to make a computer do something. That right is given to us under 102 b . If there were other ways to do it that would be another matter. Since there is one way there is no copyright protection. Even if you took the perspective that copyright looks at the options available to oracle to begin with, clearly fair use looks at it from the other end of the telescope and there was a creativity unleashed Justice Roberts before you get into fair use, you say that was the only way to do it. Cracking the safe may be the only way to get the money that you want, but that does not mean you can do it. If its the only way for you to get it, the only way to get it is a license. Mr. Goldstein that analogy would help us. If you get a patent on the safe you may be able to keep us out. If you write a book about the safe about how to crack safes that does not give you the exclusive right to do it. Justice roberts well all right. What about the combination to the lock on the safe . Can you copy that just because somebody else has it and that is the only way to get in . Mr. Goldstein if you write a book about how to unlock the combination of something, unlock the combination of a lock, that does not give you the exclusive right to the lock. It shares the knowledge about how to crack safes or open locks. Copyright law is for people to be able to use that knowledge. Justice roberts thank you. Justice thomas . Justice thomas thank you, mr. Chief justice. Mr. Goldstein, you seem to rely quite a bit on section 102. 101dont we rely on section which is more specific with respect to Computer Programs . Mr. Goldstein section 101 tells us that oracle holds a copyright in java se as a Computer Program. Tells us that copyright does not expand to any method of operation in java se. That is called the ida expression dichotomy. The merger doctrine tells us if there is only one way to provide the method of operation of java se you cannot get a copyright on that expression. Our point is that the method of operation of java se is a combination of commands by the developers and the declarations in java se. If we cannot use anything else then we would be giving oracle patent rights by preventing us from reusing the declarations. Justice thomas at what point should we determine the merger, whether or not there is merger when oracle develops this program or when you decide to use it . Mr. Goldstein the latter, and that is the teaching of baker versus selden and the text of 102 b . When you copyright something and publish it you disclose to the public. Selden disclosed a system of bookkeeping. Once published to the public has a right to use it. Here, once oracle published java se, people in the public and Companies Like google have the right to create their own versions of it that would provide the same functionality. The question is is there anyway to do it without reusing the expression of the original when there is no copyright protection . Justice thomas someone could if a team takes your best players, a football team, those playersway could perform at a high level is if you give that team your playbook. I dont think anyone would say that is right. Our point is not that we cannot do it at a high level. Everyone agrees that we have the right as google to write a Computer Program that provides all the same functionality as java se. On android we wrote new and better versions that were more suitable for a use in a modern smartphone. It is not like we are trying to take someones fan base, football players, or something else. Oracle does not want to fan base, it wants prisoners. It once the people who use its work, the developers, that is not what a copyright gives you. You dont get a fan base with a Computer Program the same way you do with j. K. Rowlings novels. Justice thomas my concern was having to turn over the playbook. Lets go to fair use briefly. How would you distinguish harper . Mr. Goldstein that was a case where the district judge made findings and the court said when there are established findings in the court the jury will resolve fair use, the Appellate Court or the District Court. Here you have a general jury verdict, there are no subsidiary findings. The jury was asked to weigh all the evidence in the fair use factors. You cannot unpack it the same way you could with harper. Justice thomas because of the factfinder or because the general verdict . Mr. Goldstein both. Both are critically important. Its not the court that is assigning the responsibility under rule 39 c end the seventh amendment, it is the role of the toy and you would have construe everything in our favor which the federal circuit disavowed doing. Justice thomas thank you. Justice roberts Justice Breyer . Justice breyer i have a question for each side. I am trying to answer in my own mind. For you i would like to ask this. Down i have a computer in front of me and i put in a command. That calls up a certain program. Which you did not copy, the one it calls up, which is setting the switches of the computer very the words switches of the computer. The words i typed also called up a particular program. A set of computers switches that will get me to the program that does a particular thing. It is a Computer Program, isnt it . And you can copyright Computer Programs. What is the difference between , etc. That sets switches on the computer and any other program that sets switches on the computer . Mr. Goldstein that is our point, your honor. Justice breyer i know that is your point, thats why i want you to say it clearly so i can understand it. Mr. Goldstein there are two parts to the shortcut program. There is the implementing code that provides of the function of the program and will produce the larger of two numbers. Oracle agrees if there is only one way to write that, we can reuse that implementing code. It cannot explain why the same is not true for the code you mentioned, the combination of calls by the developer and the declaration that appears in android and java se. If there is only one way to do it and you give a copyright that is exclusive, you are saying that person is the only one who can make the computer do the thing. Whether it is invoking the implementation code or perform the function of the program through the implementing code. Justice breyer why is there just one way to do it . If you spend enough time and you had the most brilliant Computer Programmers, dont you think they could devise a system of calling up the java program so it might be expensive to do and take a long time that did not ava. Lang. Ord j mr. Goldstein why would we have a copyright system that does that . The only upshot is to make Computer Programming inefficient so we have fewer creative Computer Programmers. We do have very good Computer Programmers. When you use that instruction math. Java. Lang. It is a rule of the language that there is only one declaration that will work with it. That is a plain finding of the District Court that is uncontested. Justice breyer thank you. Justice roberts Justice Alito . I am concerned that under your argument all computer code is at risk of losing protection under 102 b . How do you square your position with congresss express intent to provide protection for computer code . Mr. Goldstein that is a criticism that has been levied at our argument about the method of operation. It is not a criticism that i think is fair of our argument about mergers. Our argument is limited in that sense to circumstances in which the function that is disclosed, the relationship between the calls and the declaration and only be written one way. Its a principle that oracle concedes with respect to the implementing code that makes the shortcut programs work, and produces the larger of two numbers. Have beenito there questions already about the merger argument. How do you respond to oracles argument that you are arguing in a circle, that there is only one way to write a declaring code like oracle did. Mr. Goldstein that is not what we are trying to do. Our analysis is not circular, it is by reference to what the developers are trying to do. The developers have a right to use the commands that they have learned in java including the ones that worked with java se. When developers use those commands we have the right to write a computer that will respond to those commands. We will happily not use the java se declarations if we could come in a language only permits us to use those. You could use the same circularity argument about the merger doctrine for anything in english, you could say every d in english we have not abandoned the merger doctrine. If they were to disclose something as java se discloses the relationship between calls and declaration, then you have the right to perform that function, and less somebody wants to get a patent. Totice alito let me switch fair use. Thatshould i do if i think the purpose and character of the use and the effect on market value here weigh very heavily against you on the fair use issue . That a jury could not reasonably find in your favor on those factors . Mr. Goldstein you should recognize that those factors are continuums. Do think,e to say i notwithstanding the jury verdict, that there was some marked effect. You have to recognize that a jury looking at all the evidence could reasonably conclude that the other fair use factors including the fact that the original material here, the declarations, is barely creative and it has unleashed millions of creative Computer Programs used by on billion people. That on a whole is not unreasonable for the jury to find fair use given that it was their responsibility. Thank you. Justice roberts Justice Sotomayor . I go back toayor the essence of the questions that i think my colleagues are asking. Betweenou differentiate declaring codes and implementing codes . You agree that you could not have had copied your implementing code because there are multiple ways of doing that. You fight the declaring codes because there are multiple ways of declaring as well. Apple has a different way of declaring the same functions. They spent billions of dollars necessary, presumably you could have. You spend so much time in your brief convincing me that implementing that declaring codes go together, they merge. How do we draw the line . Mr. Goldstein you dont. It is oracle that is trying to draw the distinction you say is not recognized by the statutes. The legal principle that you can reuse computer codes that can only be written one way applies to declaring code and implementing code. Oracle concedes its implementing codes can only be written one way we could reuse it. It could not explain why given that the declaring code will not function if it is written another way. We cannot reuse that. They are trying to draw that line. With respect to apple, they did not reuse the java se declarations because they were not using java. They did use other declarations. Justice sotomayor may i stop you right there . Which is,e problem what gives you the right to use work . Original how do you define method of operation so that there is a andeen line between that you have to create new code, like the implementing code . . Mr. Goldstein section 102 b tells you you cannot get a copyright in the functionality of the computer code. There are so many things listed like method of operation because Congress Wanted to be encompassing, you get a copyright none of the functionality. The merger doctrine tells us if there is only one way to write the computer code that will provide that functionality, then you cannot get a copyright protection, you have to get a patent protection. With respect to implementing code, because there are numerous ways to write the implementing code, we wrote it. Millions of lines of it. The only reason the only reason we reuse to the code was because we had no choice. We could not write a Computer Program that would respond to the developers instructions without using this limited set of instructions. Justice sotomayor my problem of your argument is what is your definition of interoperability . As them to define it extent to which existing thirdparty applications can run on your platform. Not whether app develops apps developed on your platform can run on systems that use max. Math. Java. Lang. Is one way. T you now have developed many different packages and platforms and things like that. Can they copy years . Mr. Goldstein they can copy any part of our code including certainly our interfaces, our declaration that can only be written this way. We have interoperability in the fact that developers instructions work with our methods, classes, and our packages. It is frequently the case that you have in modern Computer Programming interoperability, a new Software Program that comes in and supplants on older, less superior one. One that does not work as well. That is incredibly important and what congress should want, to be able to take the functionality of a Computer Program, somebody comes along and does it better. Its no surprise that we dont use all of the packages, because they dont have anything to do with a modern smart phone. They dont have a gps function to them. The smartphone does not have a computer mouth. There is no reason to think he would reuse all of them and it would be impractical given the constraints of a smartphone. Justice sotomayor thank you. Justice roberts Justice Kagan . Justice gorsuch i am surprised or confused about some of the arguments you are making this morning. Maybe it is just me and i dont understand it. I am hoping you will explain it to me. When i read your briefs i took you to be making a different argument principally than the one youre making today. I thought you would be saying that the declaring code is unprotected because its a method of operation, it allows java programs to operate the computer, and to be setting forth the plenty pretty flat rule on that of that kind. I do not hear you saying that today. I hear you saying that the real question is are there multiple ways of doing the same thing . Are those different arguments and which one are you making . Mr. Goldstein they are different arguments. We are making both of them. I am focusing on the merger. The argument you mentioned as our lead argument i dont think honestly is. We have a straight, p or, text your list argument that the american code is a method of operation because it is the theloper on how to operate prewritten Computer Program. Today i have focused on the argument that if you disagree with that, if you believe section 102 b only embodies the idea, expression dichotomy then you apply the merger doctrine and say section 102 b says you cannot copyright all the ways of having the method of operation of java se. My point is thats what they are trying to do here. Yource kagan if that is test that you are focusing on today, is that essentially the test that comes out of the Second Circuit case . Is there difference between what you are saying today and what they say in the Second Circuit which is essentially that we have to figure out how to separate out the expressive elements of something . Mr. Goldstein the Second Circuit does have the abstraction filtration test. An element of the test is that you take out the elements that are not subject to copyright protection. Merger is in there and that is one of the reasons an element of a Computer Program would not receive copyright protection, the fact that it merges, has only been available for expression. It fits within the Second Circuit flame work, framework, but does not supplant it. Justice kagan back to something the chief justice was asking about. Suppose im sitting at an appomattox class and a professor sit a mathematics class and the professor says to do approve. It turns out that 20 people in this math class, up with more than one proof. Some were better than others. Some were elegant and some were less elegant. There is more than one way of proving whatever proposition there is. How do we deal with that . I would think that is analogous to the situation here, that there is more than one way and oracle happened to come up with an elegant one. Mr. Goldstein it depends on what the it is. The Computer Program works in a very technical and specific way. That is the developer will type something into the computer. That person will input particular information. Thatuestion is, how is it you are going to write the Computer Program that recognizes what they are going to say and respond appropriately . If you say you can get a only computer the code that will understand the proof, there is only one Computer Program that will look at students proofs and understand them, if you give something a copyright if you give someone a copyright that you are giving them a patent because nobody can make a computer nobody else can make that computer do that particular thing. Could you generally find the larger of two numbers or prove something. It gets way into the details. You cannot get copyright protection with respect to any method of operation. This is clearly the method of operating java se. Justice kagan thank you. Justice roberts Justice Gorsuch . I understandch if the conversation so far, you are moving past the primary argument your brief that i think that is a wise move computer fact that a Program Including statements for instructions able to bring out a certain result may be copyrighted. We may not think otherwise. There it is. Normally the specific instruction there on 101 would govern the more general idea expression dichotomy in 102. Am i right that we can move past that rather rapidly . Mr. Goldstein our main argument is the merger doctrine. Justice gorsuch i take that as a yes. Mr. Goldstein i was going to sorry Justice Gorsuch if we are Justice Gorsuch if we are moving to the merger doctrine, i am stuck in a similar place as. Ustice kagan the argument strikes me very much as i wish to share the facilities of the more successful rival because i have come up with a particularly elegant, efficient, or successful highly adopted solution in the marketplace. What do we do about the fact likeother competitors apple or microsoft have in fact phonesle to come up with that worked just fine without engaging everyone agrees that every platform including java se does what we talk about witches reimplement prior languages or prior platforms. Apple and microsoft use different languages entirely. Its like saying we cant have a merger in english because someone could write something in france. The rule that oracle once, you talk about this facility, it something that has a realworld analog and it ends in exclusive rights like patents. You can have an exclusive right to the words on the page, the actual computer code, but not to what the computer does. Saysnt it difficult to that this is an essential facility type problem when others have managed to innovate their way around it . If this was antitrust law and essential facilities test perhaps. Tells us you cannot have an exclusive right to inessential facilities. It does not say you can get a copyright with respect to method of operation so long if it weresuch about ideas and expressions merging and others have been able to accomplish the task without reliance on what you might claim to be the essential facility, where do we stand . Mr. Goldstein we are misunderstanding what the task is. If the task is a highlevel generality, an idea of be able being able to create a phone, fine, but that is not the test. The test is to look at the copyrighted work and find its methods of expression. Inside java se you will find this relationship between the declaration and the developers commands. That is something that functions in Computer Programs you cannot get a copyright with. In any event you would look to the jerrys fair use verdict very plainly given that the jury heard all these debates about the relationship between java se and android and concluded on the whole as was his responsibility that this is a fair use. Justice gorsuch thank you. Justice roberts Justice Kavanaugh . Justice kavanaugh good morning, mr. Goldstein. To the extent you are still making the method of operation argument, the other side and the solicitor general say that declaring code as a method of ofration in the same sense Computer Programs as a whole are methods of operation and therefore your method of operation argument would swallow the protection for Computer Programs. Your response to that . Declaring codes are distinct in computer code. This is oracles point, it is unique in that it tells the outside developer what to do. The developer looks at the declaring code and then knows how to operate the shortterm prewritten programs. It tells someone else how to operate the Computer Programs, that is unlike any other code. On Justice Kavanaugh on your merger argument one issue that has been raised is the timing issue. Another concern is that it seems to define the relevant idea in terms of what you copy. Au are not allowed to copy song just because it is the only way to express that song, why is that principle not at play here . We are not defining mergers self reflectively. We are not saying we want to copy these declarations because we like them. We are saying we have to reuse these declarations because i am trying to respond to commands from other people. The developers are writing , in the hypothetical max. Math. Java. Lang. When they write that i have to be able to write a Computer Program. Oracle concedes i can write a Computer Program that does those things. Of baker versus selden teaches that if you have a copyrighted work and it shows the public how to do something, then the public can do it. If they can only do it using part of the copyrighted work that part does not get copyright protection. Justice kavanaugh one of the points in some of the amicus briefs, i want to compliment the briefings of the parties and the amicus briefs that have been very helpful. ,f the 83 Computer Scientists the sky will fall in essence if we rule against you in this case and threaten significant disruption. To, thetion i had federal circuit ruled in 2014, the court denied this on the first issue. I am not aware that this sky has fallen in the last five or six years with that ruling on the books. I know it is different if we rule here. Can you respond to that . Mr. Goldstein after the copyright ability ruling it was open that we would prevail on fair use and we did. We won the fair use trial and that went to the federal circuit and when the federal not only the countries leading Computer Scientist but the Software Industry itself, if the premise is not in dispute, interfaces have been reused for decades. It has always been the understanding that this purely functional noncreative code that is essentially the glue that keeps Computer Programs together could be reused. It would upend that world to rule the other way. Justice kavanaugh thank you. Justice roberts mr. Goldstein, would you like to take a minute to wrap up . Mr. Goldstein i want to address the argument that it is sufficient that google could write new declarations that would require developers to learn new instructions and that we are effectively stealing this efficient way of doing it. The soul of the oracle rule would be to make the creation of innovative Computer Programs less efficient, that would turn the copyright act on its head. The declaration so lacked creativity that they deserve the least copyright protection. There is no practical or textual basis for that theory. By claiming the exclusive right to the declarations function, oracle is asserting a patent right to insulate itself from competition. Textually, section 102 b provides that copyright does not extend to a method of operation embodied in java se. There is no exception for the methods for which there are possible substitutes. Saying that the developers could use different commands is another way of saying they could use a different method of operation in conflict with baker versus selden. Would provide developers dont have to use prewritten programs at all, they could write their own Computer Program from scratch and it would be less efficient. Justice roberts thank you, mr. Goldstein. Mr. Rosenkranz . Thank you, mr. Chief justice. Googles whole argument this morning is code is different. Legalbasic lisle principles and concessions control the outcome of this case. Congressnciple one, defined literary work to include software and granted copyright protection as long as the code is original. Google conceded that oracles code is original. Thats the end of the question. Google asks this court to carve out declaring code. Congress rejected the very carve out in multiple ways including its definition of Computer Program and by not including googles carve out among the imitation in section 117. Harford andeld in stewart that a superseding use is always unfair as a metal matter of law. No court has found fair use or upheld a fair use verdict. Expression into a competing commercial sequel to mean the same thing and serve the same purpose as the original. Google conceded the purpose and the meaning are the same, that is the end of question two. No one else thought that innovating required copying a code without a license. Alito notes, apple and microsoft did not copy to create their leading platforms. Neither did others who wrote competing platforms in the java language. There was and still is a huge market for declaring code, other major Companies Like ibm were paying a lot of money to license just the declaring code for sum. Google never denied this. If this court holds that a jury may conclude that copying declaring code is fair it will encourage copying, create legal uncertainty, and decimate the Business Model that a lot of companies depend on, undermining the very incentives copyright was designed to promote. You want to open a restaurant. You have a new chef with great new dishes. Then you say, we have to figure out what the menu should look like. Of course you are going to have appetizers first and entrees than desserts. You should not have to worry about whether that organization is copyrighted . Goldstein is saying that is what is going on here. Every restaurant organizes its menu that way. You dont want to discourage people from opening it because they will have to spend their own time trying to figure out what the menu should look like. Why is that not exactly what google is saying here . Mr. Rosenkranz this will be a constant theme i think. Its like there is an app for that, there is a doctrine for that, two actually. Is ahe menu if there standard way of doing things it is not protected or it is unoriginal by your own description. What we have here is different, it is not a menu named here are absent here are dinner plates with standard descriptions that everyone uses of those apps and dinner plates. We filled the blanks in 30,000 times over and each item had its own description that nobody else was using. They did have a choice. Themwork did not leave with no option. What choice did they have without having to spend billions of dollars which would be wasteful and impede the development of the hightech business . Mr. Rosenkranz oh my goodness, your honor. Without spending the billions of dollars, microsoft and apple both spent billions of dollars creating their Computing Platform . That is exactly what the copyright act requires. The copyright act does not give google a pass just because it would be expensive to recreate our expression. Justice roberts mr. Goldstein says the most efficient and best way to do it, the way to keep programmers doing new things rather than old things is to use java. Honor, inranz your no other context would it be whetherate to be asking there are either unprotected whether the work is unprotected or whether there is fair use by saying that the audience if somebody wanted to write a book that preserved and reproduced the 11,000 best lines of seinfeld, they could not do to do ithey had because those are the lines everyone knows. Thank you council. Justice thomas . Rosenkranz,as mr. And your brief you seem to be arguing for more declaring code. They are right there do we need to decide more than that . Mr. Rosenkranz all this court has to decide is whether the declaring code for purposes of copyright ability, the declaring code was original, it was, and for purposes of fair use whether it was fair to copy the declaring code. The point i think you know in the brief is the point that several justices made this morning. You cannot distinguish declaring code from implementing code, certainly not in the way congress defined the code. In no distinction courts are capable of drawing, as Justice Breyer noted, code is code. Declaring and implementing code consist of words, numbers, or other numerical symbols within the definition of literary work, both operate a computer. Is your goldstein says his rule is what congress would have wanted, but congress rejected what google proposed when it defined Computer Programming in section 101 as code to be used directly or indirectly to bring about a result. Justice thomas you seem to use was notoogles transformative because the use of declaring code operates on android the same way it operates on java. What would transformative look like in the context of computer code . Mr. Rosenkranz in the context of computer code, the ninth circuit in sony versus connected there was a great example of transformative use. The code was never incorporated into a competing product. It was used to study. Figure out how the machine works. That was a transformative use. To preferred the authors statutory right to create derivative works this court has held the transformative use must alter the original work expression, meaning, or message. Google did not do that and concede that every line of code it copied serve the same purpose and communicates the same thing in adapting our code for the supposedly new smartphone environment does not change the meaning and is no more transformative than adapting a short story into a movie. What google did is the what campbell describes as using a work to get attention or avoid the directory of working up something fresh. Justice roberts thank you. Justice breyer . Justice breyer please assume the following. Assume that the Computer Programs which do something after all are copyrightable. Then it says methods of operation are not. Whether they are Computer Programs or not. Is, is thisfor us more like Baker V Selden where it says the accounting is not the method of operation, or is it more like an ordinary Computer Program . What i got out of reading through this, very good briefing. Divided thejavas universe of tasks in a certain way. Although things that tell the computer to do one thing will do. That which tells the computer which to do, that is the declaration. Here is what it is like. It is like as the judge said, the qwerty keyboard. If you let someone have a copyright on that now they would control all typewriters. Onit is like switchboards oldfashioned telephone systems. You could have done it in 1000 ways. Once you did it, all the operators across the world learned that system and you dont want to give a Copyright Holder a monopoly. To use the chief justices example, a shaft that figures out a brilliant way of mixing spices and putting the spices in a certain order. Then you write something that tells you which shelf to go to and which shell to pick out and which spice to pick out. Those things are someone ordinary programs, but they are also doing something. They are giving us an instruction on how to call up those programs that reflected javas organization. At this point in time it is tough, just like the qwerty keyboard. Very bad consequences will flow if you dont see that distinction. When iestion, but thats got out of the method of operation argument. I want you to say what you want about that. I will answer your questions with two answers. This is not like the qwerty keyboard. There was never anything expressive in qwerty. It was purely mechanical. That is true of all of your examples. You got right to the heart of it by asking about baker. The author selden published a book describing a bookkeeping system. Selden tried to extend his copyright in the description to block everyone else from using that system. His book attached forms that were necessary to use the system. Were not the same as seldens, but selden sued for Copyright Infringement putting debits and credits on a single page. You cannot monopolize lined paper. Justice roberts Justice Alito . Justice alito can i ask about the standard of review question . N fair use the jury returned a verdict on fair use and at article moved for judgment as a matter of law. Why wasnt the federal circuit required to apply the rule 50 standard and ask whether the evidence presented at trial most favorable to google would have been sufficient as a matter of law to support a jerrys fair use verdict. Fair use verdict. Mr. Rosenkranz that is what the federal circuit did. The court of appeals approved a new reasonable standard that google urges. The court said no reasonable juror five times and petitioned 50endix 27 to 28, 42, 46, one, and 52. Having found that factors one in four strongly favored oracle and that googles use was superseding there was no other reasonable conclusion to the first back half of your question. The standard of review is by which i mean it reflects the jerrys findings of historical fact and then allows the courts as the courts have been doing for decades, usually on Summary Judgment to decide what legal conclusions to draw from those facts. Nowhere resolving fair use requires primarily legal work in an area where stability is paramount and where precedents matter, is the ferry as the fair use precedent illustrates their use cases typically turn on disputes about the legal standard. Justice alito there are mixed questions of fact and law that were submitted to juries. That is what happened here. Was that an error . Mr. Rosenkranz i think what this court has done under fair use is to note in the review that harper was a did novo case. This court said explicitly it was not sending it back to the district to resolve anything. T this court could decide on Appellate Court may take this as a matter of law that the challenge does not qualify as fair use. Once it has the factual record and resolves all factual subsidiary factual questions in favor of the factfinder. There were numerous disputes in harper including how you weigh various factors, questions like the value of news reporting weighed against the regional authors derivative work. I grant you that a lot of mixed questions are more factual. The stability that judicial review provides is essential for fair use because there are constitutional implications. Justice roberts Justice Sotomayor . Justice sotomayor in your beginning statement you had in the sky falling if we ruled in favor of google. The problem with that argument is that it seems since 1992, Justice Kagan mentioned the Second Circuit case and First Circuit case that a basic principle has developed in the case law. Up until the federal circuits decision. I know there was a Third Circuit decision early on in the 1980s. If the other circuits moved away from that, they and the entire computerworld have not tried to analogize computer code and other methods of expression. It is too generous. They have looked at its functions. The api, thed application programming interface with which the declaring code is a part is not copyrightable. Implementing codes are. Understanding, industries have built up around applications that no they can toy only what is necessary run on the application, but they have to change everything else. That is what google did here. That is why it took less than 1 of the java code. Guess that is the way the world has a run in every other system, whether it is apples desktop or amazons web services. Areybody knows that apis not declaring codes, are not copyrightable. Implementing codes are. Nowse explain why we should upend what the industry has viewed about the copyrightable elements and has declared that some are methods of operation and some are expressions. Why should we change that understanding . I beg to differ with the understanding of the lower court cases. A single case has other has ever said you can copy this vast amount of code on any platform to use for the same purpose. , the firstircuit circuit, the ninth circuit, and the 10th circuit all agree with that. Nobody drew that distinction between implementing code and declaring code. You will not find a single case that does this. It is just wrong that the success of the Software Industry depends on licensed copying. Major corporate entities will pay a lot of money for this code. Google making a point either involving no copying at all, licensed copying or copying of elements that were so uncreative that nobody would say they were protectable. Justice roberts Justice Kagan . As i understand that there are two features of your declaring code that you think merit copyright. I want to make sure i am right on this. The first feature that is pretty basic is that we need some way of connecting a programmers input whatever they have to be. Happen to be. Collecting those inputs to implementing code. The second feature is that there needs to be a way to organize those inputs, those into various packages. One is the trigger and one is the method of organization, is that right . Mr. Rosenkranz there are two things that we save merit copyright protections. The first is the manner in which we describe each function, each method, that is itself creative and it line teaches the user what that method does, how it is used, how it will link to others, and what the results will be. The second piece is the overall structure sequence and organization. Those are the two things. Start withan lets the taxonomy and the structure of the organization. An example similar to the chief justice. Suppose i own a Grocery Store and i come up with a terrific way of organizing my Fresh Produce into these categories. Very intuitive for the shopper. This is not the standard way. It is different from the chief justices hypothetical in that way, it is novel. Arrival Grocery Store, all rival Grocery Stores want to copy it. Do i have a copyright claim . Mr. Rosenkranz you have a copyright claimant anything that is not set down in writing. That youypothesizing put down an outline form in the way of organizing. Would be a lot of fair use questions about that. This is a world to Justice Kagan why . It seems there are all kinds of methods of organization in the world. Whether it is the qwerty keyboard or the periodic table or the system of kingdoms and classes and so forth that animals are organized into. There are 1000 ways of organizing things which the first person who developed them, here is the input, have a copyright and prevent anyone else from using them. Lets not forget that the is enoughcode itself volume to take up 600 pages in the joint appendix. The declaring code itself gets protection. The answer is, the relationships of the methods, classes, and packages, its not just the most intricate hierarchy you have ever seen if you look at one package on page nine you will see it and multiple cases of the supplemental appendix. The relationships cross from one package to the next, from one class to the next, it is extraordinarily intricate in a does not deserve copyright protection. Justice roberts Justice Gorsuch . Justice gorsuch good morning, counsel. Your colleagues on the other sides suggest the federal circuit did not give sufficient deference to the jurys finding of fair use and i would like to follow up on that. Fact specific questions like fair use that are multi factor balancing kind of reviewed for substantial evidence in the record. That is not what the federal circuit here did. Particularly when the questions are kind of novel and legal rules have yet to crystallize and form around them. Circuitld the federal not have used that traditional standard of review . My first answer is the same as the answer to Justice Gorsuch, it did when it was conducting its analysis of those page numbers that i mentioned. Lets suppose that is not how i read the federal circuit decision. Lets suppose i agree with you, i think you have said elsewhere that they properly reviewed case fordnt we remand consideration under a more deferential standard we would normally apply to jury findings and general verdicts . Mr. Rosenkranz this court could if it believes that is not what the federal circuit did. In addition to the point i made earlier about the need i would say in terms of institutional confidence this is a question of privacy. The key difference between us and google is that it thinks that only even if the parties stipulate on all the historical facts a court cannot breaking Summary Judgment is what courts do all the time. A professor identified over 100 fair use cases decided by courts on Summary Judgment in a 30 year time span. Google to find only five cases that even went to a jury in a 30 year span. Under the google approach Summary Judgment would be nearly thank you. Kavanaugh . Thank you and welcome back. I want you to followup up on two questions. Aboutng you want to say Justice Breyers question and istice sotomayors question ld add thank you. Anz let me answer on baker. If we were trying to block others from using their own package class method structure to overwrite their own prewritten programs. Son wrote its own specific layout. We seek to protect only that fully realized expression. Others are free to organize their own prewritten programs however they see fit as long as they dont copy hours. Half aboutsecond expectations, we have heard dire predictions from google about software innovation. Two different administrations would not be supporting us if their administration were a threat to innovation. Rose toware industry world dominance because of copyright protection not unlicensed copying. Earlier,inted out Justice Kavanaugh, the sky hasnt fallen in six years since the court of appeals first discussion brought numerous innovation into interoperability. Computing,n cloud 5g, machine learning, and autonomous vehicles. I can tell you two things that will kill software innovation. The first is to change the rules under which industry has thrived for 40 years and substitute a rule that was fair to copy is what every jury decides as a matter of public policy. The second is take away the incentive to write original code. Thank you. Do you want to take a minute to wrap up . Yes, mr. Chief justice thank you. Just say two things. The first is that ruling for google will decimate the incentive to create high quality user facing declaring code. The code that on both sides insist is essential for the industry to survive. That will help hurt App Developers in the long run. Script nvest the in excruciating time it takes to refine code from passable to masterful if it can all be stolen . Big companies are paying lots of money right now to license code. Justice sotomayor, it is simply not true that they are paying because it is all unprotected. That whole market will be gone with the stroke of a pen. Congress passed the copyright act that gives the longterm incentive to create not shortterm expedience to copy, ruling for google will also destabilize copyright law. Our rule protects original code. It is a simple rule, it comports with copyright principles. Googles ruled that code can be copied whenever necessary or a user to bring about result is poorly defined and will do ports jim courts to decades of uncertainty. Mr. Stewart . Thank you and may please the court. In the mid1970s, congress established a National Commission to study problems related to law and computer code. The report recommended that computer code continued to be eligible for copyright protection. The central justification a gave was that computer code is much more expensive to draft and it is to copy and consequently, if potential authors of computer code new their works would be copied there would be a disincentive to creation. It is the preservation of those that is theentives justification for having copyright protection in the first place. That googles argument is it would be inefficient to make in order toew calls invoke new declarations. Created, ifhas been you focus exclusively on that work, it will often same more efficient to allow copy. Mr. Stewart, you represent the united states. We are told that if we agree with oracle, we will doom the Tech Industry in the united states. Why is that not true . Three or four reasons. The first has been explored already that the federal circuit offered its opinion in 2014 and we have not seen deleterious effects from that. Second is that the priest talk interfacesractice of for apis but those terms are vague and expensive. Segments of code that are necessary to preserve interoperability. It may be that circumstances, particular interfaces can be copied without authorization but that is not a basis for a general rule. There is a prevalent practice of license copying declarations. That is often done through what is called open source licensing. The Copyright Holder can simply announce to the world you are free to copy this code as long as you comply with the following conditions. Thank you. Erts Justice Thomas . Thank you. Do you think the federal circuit review the proper standard . Mr. Stewart we do. Judges could disagree the district is supposed to say what is the right answer to those legal questions. When we ask could a reasonable jury have found we could be asking could a reasonable jury apply an accurate version of the law have found fair use . We assume the jury made the factual findings that are most favorable to google but we ask what is the right answer . Was this transformative . Thats the way the federal circuit did it. It said we will assume the version of the facts most in googles favor but then we will determine whether this is transformative. Thats the way the court did it in harper row. Likesolution of questions was this transformative or how do we balance the factors should be given greater weight than the view of the District Court with respect to the same questions. Congress in the Fair Use Analysis, it provided for factors. We said that those were nonexhaustive. Can you think of anything else that should be added in that analysis . I cant think of anything else. There may be other factors in particular cases. The one thing i would emphasize is that in deciding questions of fair use, the court shouldnt just be asking how would consumers potentially benefit from widespread copying with respect to this particular work. The court should also be asking what incentives to future innovation would overrule create . Justice roberts Justice Breyer . Why theurious to government thinks harms the way you do . Calls up theyboard metal rods that make an impression on a piece of paper than that is how you write words. This calls up a system of dividing the world into a variety of tasks nothing copyright is meant to give the a monopolye qwerty of typewriting. Nothing here they say if in fact you give them a monopoly of this , the millions of people who have learned this as Justice Sotomayor says would have to spend vast amounts of money when we get all kinds of new methods for using computers turning on heaters, stoves, etc. And a million others. Teaching them is unbelievable. It will give the owner of the declaration monopoly power over all those uses. That i think is roughly what they are arguing. Why does the government rejected that . Are all sortshere of things like the qwerty keyboard that have become standard but would have not been eligible for copyright protection in the first instance because they are not sufficiently creative. Here, google has conceded that the large volume of individual declarations and the intricate method of organization that is affected in the sso are sufficiently creative to qualify for copyright protection. The second thing is when we talk about the people who will have to learn new calls in order to invoke aqua rations, we are not talking about consumers or the people who use the smart phones. We are talking about app avella first and these are economic actors. Apps,y can create popular the App Developers will gain money and google will gain advertising revenue because the android platform will become more popular. Justice roberts Justice Alito . There has been some elaboration on it. There is an argument that the if we dont to fall rule for google. You want to have anything you want to add on that point . The last point i had gotten to toward the end which was the phenomenon of license copying. Oftentimes, the license dont include the payment of money, they just include a requirement like whatever improvements you make have to be given back to the programming community. They have to be made known to other potential programmers. The Copyright Holders authority to enforce those licenses obviously depends on the proposition that the code is copyrightable to begin with. Those licenses would be a pointless gesture otherwise and the very fact that they are offered with such frequency tends to dispel the idea that there is a common understanding and the Relevant Community that this material is not copyrightable at all. Justice roberts Justice Sotomayor . Can you tell me why you think that googles work was not transformative . Moved jobless platform java platform to a pc from a pc to a mobile phone. Why was that not a transformative step . That all fairthat use involves copying. You have to copy something and create something new from it. Of wasnt that a giant step fair use . Mr. Stewart three or four things as to why this was not transformative. The first is when google explains why a copy of these particular declarations and not others within java, explanation is that these are the declan functionality that will carry over to a smart phone platform. These are the declarations that will be useful in the new technological environment. Written that oracle had might not be useful, this code is. The second is that Justice Sotomayor thats the only way to make what they copied in terms of declaring code was only that that would function in the new environment. That needed to function in the new environment. Mr. Stewart its not the only way they could do it that would make it function in the new environment. Its the only way that would do it that would allow the App Developers to use the preexisting calls in order to call up the established methods. The second thing i would say about transformative this is the whole argument about allowing App Developers to use their knowledge, the only way it works is that App Developers can have confidence that when they use a call with which they are familiar, it will trigger the same functionality that it has triggered on the java platform. It is not transformative, the code is performing exactly the same function that it performed on java. The third thing i would say is if you imagine a Motion Picture that has only been released in theaters and somebody gets the press and tries to livestream it over the internet, it is the same content that is being used on a different platform. No one would think of that as transformative. Thank you. Erts it Justice Kagan . Justice kagan suppose that i come up with a new and useful keyboard better than cordy. The qwerty keyboard. And everybody starts using it. Assume that it is copyrightable. Go to the fair use question. Manufacturerhone takes that layout, takes the keyboard and uses it for its next phone, is that fair use and why or why not . Mr. Stewart the Fair Use Analysis would depend on a lot of factors. You could take into account developing expectations, concerns about interoperability. We are assuming for these purposes as you asked that this is copyrightable. That would be a factor to consider in Fair Use Analysis. We dont have a quarrel with the proposition that observing interoperability can be for Fair Use Analysis. Why is it not so that they took my keyboard so the people could rely on something to lawyer . Mr. Stewart the App Developers are in a fundamentally different position from the smartphone users. If google had tasked its own employees with creating new apps so the google platform, the android platform would become more popular to consumers, nobody would think that the desire to make it easier on those employees by not requiring them to learn new calls would be the base for providing fair use. As the court said, that was the enigmatic example of copying to avoid the drudgery of working up something new. The analysis should not be different just because the App Developers are independent economic actors whose interests happen to align with google rather than google employees. Justice roberts Justice Gorsuch . Justice gorsuch the government concedes that this work is copyrightable. But then says the Fair Use Analysis has to permit the copying. Us oner whether it gives the one hand and takes away from the other. Of four use analysis factors that need to be weighed, why could no reasonable jury have concluded that it was fair use here . Arent you essentially saying that yes, code is copyrightable but it is always subject to fair use . Mr. Stewart we are certainly saying it is subject to Fair Use Analysis. We are saying that fair use was not there. The districtk court made the error that it treated as a factual question what it should have treated as a subsidiary legal judgment. On the question of transformative nest, google argued this is transformative because it is being used in a new platform. Oracle argued its the same code for the same purposes its not transformative. The district courses did not decide which of those uses was right just a reasonable jury could have sided with google. That would have been fine if this was a factual determination. Question is that sufficient to make for transformative use is illegal decision. The court of appeals reviewed that decision and correctly found it was not transformative. Justice gorsuch if we disagree with you on the standard of review that should apply, what should we do . Mr. Stewart if you disagreed and you thought questions about is this transformative or not given stable body affects, that is a question as to which a reasonable jury should be erred to in a remount agreement is the appropriate course. That is not only going to affect jury trial practice, it will affect Summary Judgment practice because a lot of fair use decisions are made on Summary Judgment. That would no longer be a factor for issues like just putting it on a new platform make for transformative nest. Justice Gorsuch Justice kavanaugh . Justice kavanaugh i have two questions. Google says in its reply brief that the undisputed fact in this case is that declarations could not be written in any other way and still properly respond to the calls used by java programmers. Are they wrong in saying that . Mr. Stewart i dont think they are wrong in saying that, but that argument is circular. Applies invoking the it if its only the way of getting a computer to perform a particular function but they are thening the function as code known to developers. That is wrong because section 3028 says copyright protection exists from the works creation. At the time the work was created, there were none known to developers. Is as the chief justice pointed out in an earlier part of the argument, that would effectively penalize oracle for its success. The fact the calls were wellknown was simply a function of the fact that the java platform was popular and a lot of people had written apps for it. Saysce kavanaugh google the its a method of operation because they are for the developers to use while the implementing code instructs the computer. Your response . Mr. Stewart the term method of operation comes from baker versus selden and what the court said, it was a long list of examples of if you write a book about how to do a useful task, you can get a copyright on the book but no rights on the purpose of the task. Thatourt says it found you couldnt get an exclusive right to the methods of operation. The report discussed the way in which the section would apply to computer code. Clearest expression was on one is where it said always free to make the machine do the same thing it would have done if the copyright work was placed in it. Please take a minute to wrap up. Mr. Stewart thank you mr. Chief justice. The fundamental line that should be drawn for purposes of merger analysis for purposes of 102 b is if a particular line of code is without regard to the required expertise of other actors, the only way to make the computer perform a particular function then the code is not copyrightable. Here, is undisputed that google could have written declarations and they could have been used to invoke the relevant methods so long as the developers were willing to learn new calls. Analyzing the case that way gives appropriate weight to the copyright policy of creating adequate incentives for the creation of new works of authorship. Thank you, mr. Chief justice. Justice roberts mr. Goldstein, to even out the time, we will go through another round of questioning. I will start. I wonder if you had further response to mr. Stewarts representation about the effects of the case on the Technology Market if we rule in favor of oracle . Yes. I dont think that mr. Stewart is accurately reflecting how the industry operates. You have briefs from leading Computer Scientists and the industry saying that the nonlicensed reimplementation of interfaces is widespread. Thats the concern about decimating how the industry operates. Attention to when he says categorical rules are bad in response to your question about how with this play out with other kinds of interfaces and Justice Kagans hypothetically said there are other actors involved. That is why deferring to the is an fair use verdict appropriate and sensible way to resolve the case. Justice roberts i wonder if you wanted to respond to why your merger argument doesnt make oracle a victim of its own success . Mentioned that several Tech Companies did in develop theiry to relying on thet java coding. Why should we not impose that same obligation on oracle . Mr. Goldstein that was resolved whether we had the fair right fair right use. That is an optical illusion. The brief on page 18, the microsoft brief on 14 explained that apple and microsoft, oracles example did implement prior interfaces. The reason why they didnt use these interfaces is they were using a different language. Claim does not get to exclusive right to a highly functional Computer Program without a patent. Gets to claim the words on the page. If those are the only words that will produce this result in the computer, they dont get that exclusive copyright. Justice roberts Justice Thomas . Do you have further questions . Justice thomas no. Justice roberts Justice Breyer . Justice breyer i heard that yes, that may be true, but this result is simply calling up a set of programs written by java. Beginning you could have done this in different ways with efferent divisions of tasks for the world and different call up numbers. There were people trained at that time. Copyright runs from the beginning. What do you do about that . Mr. Goldstein fair use runs from the end. Im not talking about fair use. Mr. Goldstein there is the difference between the fact that they have a copyrighted work which ran from the point of publication from weather merger applies. This is baker versus selden. Selden said on that day, he was the person who had created that but the court said what about a later user who wants to use the system, can they do it without part of the work . The court said no and that means there is no copyright protection within the copyrighted work for that particular piece of expression. Justice breyer thank you. Justice roberts Justice Alito . Justice alito no further questions. Justice roberts Justice Sotomayor . Justice sotomayor is this your answer to the transformative use argument and what is your best argument on fair use . Mr. Goldstein our answer is that it cannot be the transformative use only exist when the computer code does something different. Computer code only does one thing. There is no parity of computer code. That would mean that this highly in functional expression is less susceptible to fair use in a novel cannot write. It cannot be right. If a jury was entitled to conclude that this was an entirely new context that java was not usable in a smartphone with respect to fair use, our best argument is about the standard of review under rule 39 of fact and law was put to the jury at oracles insistence. The question is, could the jury have balanced these factors . The other side is concerned about providing legal guidance, thats why we have jury instructions. Hascourt in other cases made quite clear this is incredibly fact found. It will depend on mr. Stewart has only reinforced. You cannot say the jury cannot reasonably find that this massive creativity with a million applications and an entirely new way of computing on a smartphone is not fair use. Thank you. Justice roberts Justice Kagan . Justice kagan i am wondering the first part of the answer that you gave to Justice Sotomayor. What did that suggest the transformative use isnt the right question . As i understand it, you are using this for the exact same purpose. Its just that the purpose to make sure users are dealing with familiar interface it should favor fair use. Is the transformative use question really a mismatch in this context . Mr. Goldstein as articulated by oracle, it is. The statute does not say transformative, and ask about asks about the nature of the use. We are using an interface which is connective tissue between programs. Barely creative. We are using it in an entirely different environment. The nature of use is quite significantly different from the original use. That is the statutory question. The jurys question was balancing that and other factors. Is it fair use . To follow up on that, Esther Stewart argued that mr. Stewart argued that if we were to send it back on their use, that we would be negatively impacting Summary Judgment practice. That most District Courts take these up as a matter of law and Summary Judgment. Yes, some issues are divided frequently on Summary Judgment but that doesnt mean there arent other highly contested cases that arise in new environments as you pointed out earlier. This is that kind of case. It went to the jury. Oracle did not move for Summary Judgment in this case. When you have such a case, it isnt a license to throw out the standard of review that applies. Courts have had no problem reaching Summary Judgment where its appropriate because generally, you dont have anything like did android supplant java in the marketplace . How are they technically different . Bicycle fair use cases are things like parities or reportings mr. Stewart is cautioning you against writing an opinion that articulates categorical rules and i dont know how he wants to do that and adapt categorical rule against the reuse here. Mr. Stewart,augh you responded to my question quoting page seven of your reply brief about the merger doctrine. I wanted to see if you had anything further you wanted to add on the merger doctrine to help us understand that. He agrees with the courts factual findings that the only way to respond to these developers calls is with these instructions. That is a very important point. His point is so what, the developers can write other calls. That is a way of saying we can use a different method of operation. It is also nonsensical. Why would Congress Want a rule that says these developers are familiar with these commands, they are used to write creative Computer Programs, lets make it as inefficient as possible. Thats trying to create a set of prisoners. They want to lock the developers only into using java se. That is not a right you can get from copyright the congress would want to confer. Mr. Goldstein, you have three minutes if you want to shift to rebuttal. Mr. Goldstein i want to focus on the question of fair use and the fair use jury verdict because i think mr. Stewarts argument that categorical rules that different kind of interfaces might call for different kinds of results as might different kinds of uses is the exact reason why the standard should be applied with such vigor here. Heard testimony on a variety of points that mr. Rosenkrantz is trying to deny. I dont think there is actual debate about the expectations of the industry and they have nothing to do with licensed reuse of interfaces. There was a widespread consensus in the industry and among Computer Scientists that this has been the practice. What do you do if you are asked to adopt a categorical rule that all of those people will say will upend the industries expectations and how its operated . Of course the fair use verdict was reasonable here. Ands ultimately in fair use inquiry, would this be a reasonable application of copyright . Here, you have minimally creative declarations and they are being invoked millions of programs on an innovative smartphone platform. There was no traction to mr. Rosenkrantz and mr. Stewarts argument that they had applied the right standard of review. When they saved the ultimate expression of fair use will be decided the novo. The federal circuit made the point they deemed the jury verdict advisory and said we will take it from here. That is not appropriate. It is impossible to unpack the findings they are relying on. I want to point out how many times mr. Rosenkrantz is contradicting the jurys evidence. Saying theyrmer ceo were never licensed or sold separately from the language. In contrast to his assertion that ibm was paying for. Mr. Rosenkrantz says they see. Anted java the expert says android has not superseded java as the. They say the declarations were so important to the Developers Using oracles product but at j the the former ceo says strategy is that we agree on the apis. We share them and we compete on implementations. The evidence at the trial is certainly sufficient to reasonably conclude there was fair use. Justice roberts thank you. Mr. Rosenkrantz, mr. Stewart, thank you. The case is submitted. We will now take a five minute break. Vice president mike pence and senator Kamala Harris are preparing for tonights debate in salt lake city, utah. This is a live picture of the hall on the campus of university of utah where it will take place. Will be divided into nine segments. Our coverage starts at 8 p. M. Eastern. The debate starts at 9 p. M. Eastern. This morning, mark meadows gave an update on president trumps health. Good morning, how are you . Back, i will be glad to answer. [indiscernible]